Keewatin v. Minister of Natural Resources

Part 13. Answer to Question One 246[1311] In this litigation, it is not necessary for me to decide the specifics of what process Canadawould have been required to follow under the Treaty in the event its own authorizationsthreatened to interfere with Treaty Harvesting Rights. [We do know that before October 1873,Canada had set up a process of consultation among federal departments to coordinate exercise offederal land granting power and s. 91(24) powers and responsibilities and that in the yearsimmediately following 1873, it had taken steps to actively protect Harvesting Rights.][1312] I have found that Morris did understand that Canada's s. 91(24) jurisdiction could limitprovincial power over property. While he did not intend that Canada would appropriateprovincial assets, he did intend to ensure that Harvesting Rights could and would be protected.He did intend that if Canada lost the Boundary Dispute and Ontario was proposing to take actionthat would significantly interfere with Harvesting Rights, both provincial and federalauthorizations would be required. He understood that the use of land within Ontario could havetwo aspects, a proprietary aspect governed by the province, and an aspect governed by Canadaunder its s. 91(24) jurisdiction.2011 ONSC 4801 (CanLII)[1313] Given my finding that the Ojibway understood and agreed that they were dealing withCanada and only Canada, and that Canada intended to keep its promises, it is not necessary todetermine what the legal effect of a differing Ojibway misunderstanding would have been. I donote that the Treaty did not specify that the Queen could limit Treaty Harvesting Rights but thatthe Dominion of Canada could. I have found the Commissioners intended that the burden ofTreaty Harvesting Rights on s. 109 rights could only be removed by Canada, the guardian ofIndians under s. 91(24). I find that the Treaty required that if Canada lost the Boundary Dispute,the authorization process by Canada must be followed in respect of each and every proposed usewith the potential to significantly interfere with Harvesting Rights.[1314] I find that Morris, an advocate of strong central powers, would not have wanted to conferpowers on Ontario to the detriment of the Ojibway contrary to Treaty promises made by Canada.He would not have wanted to confer on Ontario a power to limit or extinguish the HarvestingRights the Commissioners were solemnly promising with the effect of exposing those Rights tosignificantly more erosion than either they or the Ojibway intended.Step 3: Was the Harvesting Clause as written Constitutional?[1315] Ontario based its argument on its exclusive proprietary jurisdiction over lands in Ontario.It characterized this as a case where the Plaintiffs are attacking Ontario's rights to exercise theprerogatives and incidents of land ownership. In his submissions on the Constitutionality of theHarvesting Clause, as throughout this case, counsel for Ontario exhorted this Court to focus onlyon its proprietary rights and to recognize their importance to Ontario. It demonstrated a palpablereluctance to have this Court consider the importance to the Ojibway of their Treaty HarvestingRights.[1316] Ontario submitted Treaty 3 must be interpreted/approached in a manner consistent withthe evolving interpretation of the Constitutional framework of Canada, so that Ontario is able to"take up"/develop lands and extinguish treaty rights wherever Ontario authorizes settlement,